Civil
Trial
MATHONSI
J:
The
plaintiff, a duly incorporated engineering company which is involved
in inter alia the manufacture of fuel tanks, instituted summons
action against the defendant, a bus company, for damages arising out
of a motor vehicle accident which occurred on 8 November 2009 at the
intersection of Mharapara and Seke Roads in Chitungwiza.
The
accident involved a Scania Horse registration number AAZ 4708 which
was pulling a fuel tanker registration number AAS 9480 both belonging
to Modcraft Transport (Pvt) Ltd, another registered company which is
a sister company of the plaintiff and was being driven by Vengai
Mapfumo and an omnibus registration number AAS 4056 belonging to the
defendant which was being driven by the defendant's driver, one
Damascus Mutare. I must state that initially the plaintiff sued both
the bus company and its driver Damascus Mutare but subsequently
withdrew the claim against the driver without giving any reason.
It
pursued the action only against the bus company.
The
plaintiff's declaration reads as follows;
“1.
Plaintiff is MODCRAFT ENGINERING (PRIVATE) LIMITED a company
registered with limited liability in terms of the laws of Zimbabwe.
Its address for service is that of his (sic) legal practitioners
detailed below.
2.
The first defendant is TENDA BUSES (PRIVATE) LIMITED. Its address for
service is Number 119 Mutare Road, Msasa Harare.
3.
The second is DAMASCUS MUTARE. His address for service is that of the
first defendant.
4.
On 8 November 2009 along Mharapara Road and Seke Road, Chitungwiza
around 0545 hours the plaintiff's vehicle horse AAZ 4708 and
trailer AAS 9480 was involved in an accident with the second
defendant who was driving during the course and scope of his duties
with the first defendant its bus number AAZ 4056.
5.
The first defendant is vicariously liable for the actions of the
second defendant pursuant to the above.
6.
The accident was caused by the sole negligence of the defendant in
one or all of the following respects:
6.1.
He was driving at an excessive speed under the circumstances.
6.2.
He failed to give way to traffic which had the right of way and
caused accident.
6.3.
He failed to avoid an accident which was imminent.
7.
As a result of the accident, the plaintiff's vehicle was damaged on
its 3x12R22.5 tubeless tyres, 2 x12R22.5 tubeless rims, left hand
side mudguards, front hanger, outlet pipe tank guard, left side tank.
8.
The plaintiff has not repaired the vehicle and it has sourced
quotations for the repairs and supply of new tyres the lowest being
US$13,800-00. The residue being the pre and after accident value
difference is more than the costs of repairs.
9.
As a result of the accident the plaintiff suffered repair damages and
supply of new tyres in the sum of USD13,800-00 which amount despite
damage (sic) defendants refuses (sic) fail and/or neglect to pay.”
The
plaintiff then prayed for judgment accordingly.
The
defendant entered appearance to defend and filed a plea in which it
denied that there was a road accident as alleged by the plaintiff. It
averred further that its driver was not acting within the course and
scope of his employment but was on a frolic of his own when the
collision occurred. It also made more averments including that the
plaintiff's driver was not properly licenced to drive the vehicle,
the vehicle did not have a certificate of fitness and that the
plaintiff's vehicle was not mechanically sound.
The
matter was referred to trail on the following issues;
1.
Whether the defendant was aware of the road accident.
2.
Who caused the accident.
3.
Whether the defendant's driver was acting within the course and
scope of his employment by the defendant.
4.
Whether the plaintiff's motor vehicle was properly licenced,
insured and with the relevant certificate of fitness.
5.
What damages, if any, were caused to the plaintiff's truck and
trailer and the quantum of those damages.
In
order to prove its case the plaintiff led evidence from 2 witnesses
namely Vengai Mapfumo and Freddy Hickey.
Vengai
Mapfumo is the holder of a class 2 driver's licence which he
obtained in 1993. He produced his driver's licence which shows that
he was retested in accordance with the law in 2008 which retest was
due to expire in 2012 and was therefore valid at the time the
accident occurred in 2009.
Mapfumo
testified that on the fateful day he was driving a tanker ladden with
petrol just before 6pm. As he was turning at the intersection of
Mharapara and Seke roads enjoying a right of way against the Tenda
Bus which was facing a stop sign, he glanced at his rear view mirror
and realised that the bus had not stopped and was about to collide
with his trailer which was following behind the horse.
He
hooted to alert the driver of the bus but it was too late as it went
on to collide with his tanker trailer causing the damage set out in
the plaintiff's declaration.
Mapfumo
stated that he confronted the driver of the bus who quickly
apologised to him saying that he was tired as his bus had been hired
earlier on to ferry passengers and he had driven the whole day on
that assignment.
After
that he had been reassigned to ferry other passengers.
He
made reference to the police accident book page where his statement
had been recorded at the scene of the accident and he signed it.
He
denied that his vehicle had any mechanical fault prior to the
accident.
Freddy
Hickey, is the Managing Director of the plaintiff's company who is
hands on and runs the workshop and supervises the activities of the
company.
He
stated that the Scania horse and the trailer are owned by a sister
company of the plaintiff namely Modcraft Transport (Pvt) Ltd which is
also registered.
He
made reference to the 2 registration books of the vehicles showing
that indeed the vehicles are registered in the name of Modcraft
Transport (Pvt) Ltd of Corner Harare and Willow Roads New Ardbennie
Harare.
They
are not owned by the plaintiff neither is the fuel which was being
ferried at the time of the accident.
Hickey
stated that the plaintiff and Modcraft Transport (Pvt) Ltd are
separate entities although the directors are the same. They operate
from different premises.
He
stated that the plaintiff repaired the damaged tanker after the
defendant had promised to do so but failed and business was being
lost when the tanker remained off the road.
He
told of how the plaintiff had obtained 3 quotations from panel
beaters of repute for the repairs to the tanker:
Noaluc
Panel Beaters & Spray Painters had quoted $15,594-00 for the
repairs; Floyd Enterprises (Pvt) Ltd quoted US$17,814-00; while Adec
Panel Beaters (Pvt) Ltd quoted $15,514-00.
The
plaintiff, being an engineering concern which does the same job,
weighed in with a quotation of $13,800-00 which was far less than
what was quoted by the other repairers.
For
that reason, the plaintiff under-took the job and sought to recover
from the defendant which was liable, its driver having caused the
accident.
It
is for this reason that the quotation of 9 November 2009 from the
plaintiff was addressed to the defendant.
Hickey
produced the insurance cover note and certificates of fitness in
respect of the horse and trailer to put to bed the claim by the
defendant that they were not insured and unroadworthy.
At
the close of the plaintiff's case Mr Hove for the defendant made an
application for absolution from the instance on essentially 3
grounds:
(i)
Firstly, he submitted that the plaintiff being a separate entity from
Modcraft Transport (Pvt) Ltd the owner of the motor vehicle which was
damaged in the accident, does not have a right of action against the
defendant. It is the wrong party to sue.
(ii)
Secondly, Mr Hove argued that the figure of $13,800-00 being claimed
was a “thumb suck” which has not been substantiated as shown by
the figure of $12,000-00 before VAT which has not been broken down to
show what it is that the plaintiff did.
(iii)
Thirdly, Mr Hove submitted that as the plaintiff's claim against
the defendant is premised on vicarious liability, the decision to
withdraw the claim against Damascus Mutare, the defendant's driver,
was fatal to the plaintiff's case. It could not proceeded against
the defendant vicariously where the employee has not been cited.
Mr
Bvekwa for the defendant opposed the application.
He
submitted that the plaintiff and Modcraft Transport (Pvt) Ltd are
intertwined, they have the same directors and as such no difference
exists between them.
While
conceding that it was bad corporate governance to run the entities
inter-changeably given that they are both registered, he took the
view that the plaintiff's case remains as the transport company is
run like a division of the plaintiff.
On
the issue of the driver, Mr Bvekwa submitted that the defendant
having admitted that Mutare was the driver, the onus shifted to it to
prove that he was acting outside the course and scope of his
employment as such.
I
am of the view that the last 2 grounds for seeking absolution relied
upon by Mr Hove are completely devoid of merit and should not detain
us at all.
The
plaintiff has led evidence and produced quotations, which have not
been challenged at all, which show that 3 other reputable panel
beaters would have undertaken the repairs at a cost far more than
what is claimed by the plaintiff.
For
the defendant to then say that the amount of $13,800-00, which is
significantly lower, should be proved to the last ingredient is to
clutch at straws.
In
my view, the defendant is lucky that the plaintiff repaired the
tanker itself at less the cost and is not claiming $15,514-00 which
was the lowest quoted figure.
The
citation or lack of it of the defendant's driver, cannot be a basis
for absolution from the instance.
If
the plaintiff has made a case against the defendant, it matters not
that the driver has not been cited, the defendant will have to
disprove the plaintiff's case.
Where
an application for absolution is made at the close of the plaintiff's
case, what the court has regards to was stated in the leading case of
Gascoyne v Paul and Hunter 1917 TPD 170 in the following:
“At
the close of the case for the plaintiff, therefore the question which
arises for consideration is: Is there evidence upon which a
reasonable man might find for the plaintiff?……….
The
question therefore is, at the close of the case for the plaintiff,
was there such evidence before the court upon which a reasonable man
might but should not give judgment against Hunter.”
See
Herstein and Van Winsen, The Civil Practice of the Superior Courts in
South Africa, Juta & Co Ltd, 3rd ed, at p462.
In
Bailey N.O. v Trinity Engineering (Pvt) Ltd & Others HH181/02
MATIKA J quoted with approval the pronouncement of HANCK J in
Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of
Transkei 1993 (3) SA 184 (TK) at 185B-D where he said:
“The
legal test to be applied at this stage appears to be common cause,
namely, whether there is evidence upon which a reasonable man might
find for the plaintiff: Claude Neon Lights (SA) Ltd v Daniel 1976 (4)
SA 403 at 409.”
In
the case of Standard Chartered Finance Zimbabwe Ltd v Georgias &
Anor 1998 (2) ZLR 547 (H) at 552G-H; 553A SMITH J followed the
pronouncement of BEADLE CJ in Supreme Service Station (1969) (Pvt)
Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR 1 at 5D where he said:
“The
test, therefore, boils down to this: Is there sufficient evidence on
which a court might make a reasonable mistake and give judgment for
the plaintiff?
What
is a reasonable mistake in any case must always be a question of
fact, and cannot be defined with any greater exactitude than by
saying that it is the sort of mistake a reasonable court might make –
a definition which helps not at all.”
At
5-6 BEADLE CJ went on to say:
“Before
concluding my remarks of the law on this subject, I must stress that
rules of procedure are made to ensure that justice is done between
the parties, and, so far as possible, courts should not allow rules
of procedure to be used to cause an injustice.
If
the defence is something peculiarly within the knowledge of a
defendant, and the plaintiff has made out some case to answer, the
plaintiff should not lightly be deprived of his remedy without first
hearing what the defendant has to say.
A
defendant who might be afraid to go into the box should not be
permitted to shelter behind the procedure of absolution from the
instance.
I
might usefully quote here what was said by SUTTON J in Erasmus v Boss
1930 CPD 204 at 207:
'In
Theron v Behr 1918 CPD 443, JUTA J at 451 states that according to
the practice in this court in later years judges have become very
loath to decide upon questions of fact without hearing all the
evidence on both sides.'
We
in this territory have always followed the practice of the Cape
courts.
In
case of doubt at what a reasonable court (might) do, a judicial
officer should always therefore, lean on the side of allowing the
case to proceed.”
In
casu, the plaintiff pleaded its case on the basis that it is the
owner of both the Scania horse and tanker trailer which were involved
in an accident with the defendant's bus.
It
led evidence to the effect that the bus driver was negligent as he
drove tired and lacking in concentration, thereby failing to observe
a stop sign and colliding with the tanker.
The
plaintiff also led evidence with supporting documentation that the
vehicle belonged to a sister company, which is duly incorporated,
Modcraft Transport (Pvt) Ltd.
The
driver, Mapfumo was employed by the latter as he drove the vehicle on
the factful day.
In
this jurisdiction, the separate legal persona concept is the
cornerstone of our company law.
It
provides that a company, once registered at the company registry,
acquires a legal personality of its own divorced from that of its
members. It enjoys perpetual succession, can sue and be sued in its
own right and generally stands alone outside directors or
shareholders.
For
that reason no one, not even its directors or its sister
incorporations, can sue or be sued on its behalf.
Like
in any other legal concept, there are exceptions to the application
of the legal persona principle, which may result in the lifting of
the veil of incorporation.
Those
exceptions do not obtain in this case.
Clearly
therefore, it was incompetent for the plaintiff to sue on behalf of
its sister company as it did not acquire locus standi in judicio
merely by being a sister company. Nor did it gain a right of action
by virtue of its close relationship to Modcraft Transport (Pvt) Ltd
the wronged party.
The
plaintiff is therefore non-suited and there is no way in the world in
which the court might make a reasonable mistake and give judgment in
favour of the plaintiff.
The
evidence led makes a very good case for Modcraft Transport (Pvt) Ltd
and not the plaintiff.
In
the circumstances my hands are therefore firmly tied. In the result,
I make the following order, that:
1.
Absolution from the instance is hereby granted.
2.
The plaintiff shall bear the costs of suit.
Messrs
Bvekwa Legal Practice, plaintiff's legal practitioners
T.K.
Hove and Partners, defendant's legal practitioners
